Monday, May 17, 2010

The Supreme Court ruled Monday that federal officials can indefinitely hold inmates considered "sexually dangerous" after their prison terms are complete.

The high court in a 7-2 judgment reversed a lower court decision that said Congress overstepped its authority in allowing indefinite detentions of considered "sexually dangerous."

"The statute is a 'necessary and proper' means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others," said Justice Stephen Breyer, writing the majority opinion.

Right, even though there is no evidence that civil commitment works to reduce recidivism or ensure public safety. It's not often I find myself agreeing with the Scalia/Thomas camp on the court, but their dissent nails it.

The fact that the Federal Government has the authority to imprison a person for the purpose of punishing him for a federal crime—sex-related or other-wise—does not provide the Government with the additional power to exercise indefinite civil control over that person.

Nevertheless, 29 States appear as amici and argue that [this law] is constitutional. They tell us that they do not object to Congress retaining custody of “sexually dangerous persons” after their criminal sentences expire because the cost of detaining such persons is “expensive”—approximately $64,000 per year—and these States would rather the Federal Government bear this expense. Congress’ power, however, is fixed by the Constitution; it does not expand merely to suit the States’ policy preferences, or to allow State officials to avoid difficult choices regarding the allocation of state funds.

Hilarious. As the recession deepened, many states turned to Uncle Sam to take their sex offenders into civil commitment because doing so at the state level became cost prohibitive. Give us your poor, your tired...your diddlers.

Scalia and Thomas don't really get into the larger picture, beyond federal power, but here it is: these civil commitment laws represent the slippery slope of confinement for non-criminal activity. States have always had the power to civilly commit those persons they dubbed mentally ill and thus a danger to either themselves or society.

But here, the person is a criminal (child molester) for imprisonment sake, and then when they get done being a criminal, they are crazy (pedophilia) and need "treatment" for the long-term behind the walls of a mental institution.

In some ways this represents another example of the medicalization of deviance. If we didn't view a crime like child molestation in medicalized terms (pedophilia), the idea that you could receive "treatment" and be locked up in a mental institution for this "disorder" wouldn't even exist.

Worse, most of the so-called treatments being proffered in civil commitment programs don't even meet scientific efficacy (or sanity) in most psychological circles. I'm not sure what taking courses on male-pattern baldness, flatulence, and proper table manners has to do with pedophilia, other than nothing, but this kind of dishonest shell game is standard in most states.

Fundamentally, this case wasn't really about the legality of civil commitment as much as it was authority (does the Congress have the right to exercise such an authority). The court ruled 13 years ago that states have the right to civilly commit sex offenders (Scalia and Thomas were in the majority 13 years ago, while Breyer, Ginsburg and Stevens dissented).

And given that we're talking about the worst of the worst, most people don't really care what mechanism we use, as long as sex offenders are removed. It's a sentiment I concur with, though I would use the criminal justice system (by making a life sentence mean life) to accomplish the task.

What makes this troubling, however, is the slippery slope the court endorses, be it legality or authority. For if today it's sex offenders who need to be summarily removed from society, without due process, via kangaroo civil court proceedings, tomorrow it could be tax evaders, those engaging in anti-government rhetoric, DUI offenders or (fill in the blank).

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